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Pre Nuptial Agreements

Pre marriage contracts are not binding in English law. The legal principle has always been that it is for the courts to adjudicate upon divorce and therefore attempts by parties to contract out of that jurisdiction are void.

There have however been some judicial remarks to encourage a view that the courts will in the future pay some heed to the contents of a pre-marital contract where the terms agreed in advance broadly reflect what the courts consider to be a fair outcome. It is of course an extremely difficult (and uncertain) task to plan before a marriage for the approach which a divorce court might adopt many years later.

In order to enhance the likelihood that a court will later uphold such an agreement it is vital to ensure:-

(1) That each party is separately advised and that both parties’ solicitors contribute to the process of negotiating the terms of the agreement.
(2) That each party has provided to the other full information (verified by documentary evidence where appropriate) as to their financial circumstances.
(3) That the agreement is entered into well in advance of the marriage to avoid the suggestion later that undue pressure has been bought to bear.

In order for a pre-nuptial contact to have a chance of being upheld it will be necessary to show that the parties have realistically considered what financial provision is to be made should the marriage fail. This requires a succession of “what if” style questions to be asked with obvious scenarios including the birth of children, disability or death of one party, provisions for the support of the parties and any dependent children following separation. It might be thought that the process of asking these questions is contrary to the spirit of marriage – or alternatively you may prefer the view that if these matters are faced before marriage the relationship may be strengthened – and should it fail at least advance plans have been made for both parties.

It is important for you to know the approach that a court would adopt to the resolution of financial issues on divorce if there were no pre-nuptial contact. As explained above the mere existence of such a contract will not remove the court’s jurisdiction should one party ask it to intervene but will simply represent a circumstance which the court may take into account. In determining an Application for financial provision or divorce a court is required to consider:-

(a) The income, earning capacity, property and financial resources which each party to the marriage has, or is likely to have, including in the case of earning capacity, what steps one party could take to increase that capacity.
(b) The financial needs, obligations and responsibility which each party has, or is likely to have.
(c) The standard of living enjoyed by the parties before the breakdown of the marriage.
(d) The age of the parties and the length of the marriage.
(e) Any disability suffered by either party.
(f) The contribution which each party has made (or will make in the foreseeable future) including financially, or by looking after the home or caring for the children.
(g) The conduct of the parties – but only where the conduct is particularly extreme.
(h) Any loss which either party might sustain by virtue of a divorce (the most obvious example here being the loss of a widow’s Pension rights on divorce).

We think that pre-nuptial agreements are for all of the reasons set out above likely to be most relevant to certain categories of individuals:-

(1) Circumstances where one or both parties have accumulated significant assets prior to the marriage.
(2) Circumstances where the parties were more mature – perhaps second marriages where the future is more straight forward to predict in terms of housing needs, available resources, children and earning capacity.

 

 

We are able to offer specialist advice.

Call 01323 720142 now for a consultation with a specialist Solicitor or a Lawyer at Lawson Lewis & Co.

 

Please Contact:

Jeremy Sogno (Eastbourne & Peacehaven) (01323) 720142 E-mail
Mary Browne (Eastbourne) (01323) 720142 E-mail
Barbara Macdonald (Eastbourne) (01323) 720142 E-mail